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Court Throws Out 2006 EPA Monitoring Requirements Rule

A federal appeals court struck down a 2006 EPA rule that exempted thousands of factories, power plants and other facilities from accurately measuring dangerous emissions, according to environmental law firm Earthjustice. The court held that EPA violated the Clean Air Act in allowing the largest air pollution sources to avoid monitoring, recording and recordkeeping of air pollution emissions needed to assure compliance with clean air laws.

Earthjustice challenged the 2006 EPA rule on behalf of the Environmental Integrity Project, Environmental Defense Fund, Natural Resources Defense Council and Sierra Club. According to these groups, the rule specifically prohibited permitting authorities – predominantly state agencies – from including stronger air pollution monitoring requirements in permits for approximately 18,000 major stationary pollution sources, even where needed to guarantee compliance with emission limits.

“This is a huge victory for everyone who breathes,” said Earthjustice attorney Keri Powell, who argued the case in court. “We can’t have strong enforcement of our clean air laws unless we know what polluters are putting into the air.”

The 2-1 decision came Aug. 19 from a panel of the United States Court of Appeals for the District of Columbia Circuit. The court ruled that the Clean Air Act “requires that ‘[e]very one’ of the permits” issued to large factories and power plants must require adequate monitoring, and that EPA had failed to “read the statute” in taking a contrary view.

“Public health should be a top priority, not polluters' profits,” said Sierra Club Executive Director Carl Pope. “[This] decision will give states back the tools they need to hold polluters accountable and help ensure that everyone has clean, healthy air to breathe.”

“We are reviewing the court’s decision and will determine an appropriate course of action when said review is complete,” EPA representative Cathy Milbourn told OccupationalHazards.com.

The Court ruling impacts emission monitoring requirements for thousands of facilities subject to Title V operating permits. The decision means that the public and air pollution enforcement agencies can maintain regular access to reliable monitoring data demonstrating whether large factories, power plants, cement kilns, incinerators and other facilities are polluting the air illegally.